Friday, December 14, 2007

Joe Horn and Bernard Goetz: America's Vigilante Heros (?)

  • Twice in the past quarter century America has discovered vigilante heroes in violent shootings of criminals. The November 14 saga of Joe Horn in Pasadena, Texas is becoming well known.

    Joe, 61, was upstairs in his home at 2:00pm when he heard glass breaking in his neighbor’s house. He saw Diego Ortiz, 30, and Hernando Riascos Torres, 48, with a crowbar climbing into the neighbor’s house. The residents were away for a few days.

    An increasingly agitated Joe called 911 and talked to a dispatcher, who cautioned Joe not to do anything, pointing out that if Joe went outside he could put his life at risk, and that there “ain’t no property worth shooting someone over.” Heedless to the dispatcher’s admonitions, Joe went outside to retrieve his shotgun from his pickup truck.

    Joe saw the two culprits leaving the house with a bag of loot ($2,000 in cash – which raises other interesting questions). He asked the dispatcher if he should go out to stop them. The dispatcher cautioned him: You’re going get yourself shot if you go outside that house with a gun.” Horn’s response was “You wanna make a bet?” At another point he clearly said “I’m gonna kill ‘em.” He went out, clicking his shotgun, and said to them : “Move; you’re dead,” quickly followed by two shotgun blast killing the two. Joe said to the dispatcher: “I had no choice; they came at me, man. I had no choice.”

    We start with a basic premise in our society: the sanctity of human life. Life is valued higher than property. The general rule is that while you can engage in self-defense, even to the extent of using deadly force if necessary to protect yourself, that privilege does not extent to protecting a neighbor’s house.

    Texas law is more liberal than the common law in allowing the use of deadly force to protect person and property. Texas is also very permissive on the possession and carrying of weapons. It is possible therefore that Horn’s acts may not trigger liability in Texas.

    The deceased burglars were illegal immigrants with criminal records. One had spent six years in prison for cocaine possession and then was deported. Both had several phony ID’s.

    The outpouring of support for Joe Horn has touched a nerve with the American public, or at least a large number of bloggers. A march through the neighborhood by dozens of protestors was led by an African-American leader. It met with hundreds of supporters for Joe Horn. Motorcyclists revved their engines and drowned out the protestors when they tried to talk. A web site has been established for donations to Joe Horn’s legal defense fund. Joe Horn T-shirts are for sale.

    The odds are that even if a grand jury indicts Horn, a jury in the community will probably acquit him.

  • Bernard Goetz was riding the New York City Subway on December 22, 2004 when four African-American youths with criminal records (the four had 18 outstanding bench warrants between them) rose to isolate him from the other passengers on the car. One asked Goetz for $5. Goetz had been mugged twice before and viewed their acts as threatening. (One of the four subsequently stated that they in fact intended to steal from Goetz). Goetz responded by pulling out a .38 revolver and fired five shots, hitting all four, paralyzing one for life with partial brain damage from a bullet shattering his spine. Goetz was promptly labeled “The Subway Vigilante.” His current business is “Vigilante Electronics.”

    New York was experiencing a major crime wave with riding the subway especially problematic. Rudolph Guilani had not yet been elected Mayor of New York City.

    Blogs and talk radio did not exist a quarter century ago, but strong public support existed for Goetz. The first grand jury refused to indict him. He was acquittal by a New York City jury on all charges except for a misdemeanor unlawful gun possession count. Two of the attackers/victims were subsequently arrested for rape and robbery.

    Once a community perceives that the police will be unable to protect their lives, families, and property, once the people believe that the fabric of an ordered society is breaking down, then they will tolerate self-help, unilateral action, extra-judicial means against criminals and criminal activity - in short vigilante justice. We also call it jury nullification.

    Other examples over the past decades illustrate this phenomenon. A 1982 jury in New Haven acquitted a 72 year old woman in shooting to death one youngster and wounding another. Neighborhood youth had been taunting her for years. The shootings were preceded by two days of rock throwing at her house.

    A Bronx jury in July 1991 acquitted a man of attempted murder for shooting his son’s killer in the back on the steps of the Bronx County Courthouse.

    A 1988 Detroit jury acquitted 2 men of arson insetting fire to a neighborhood house used by drug dealers. Similarly, a 1996 jury absolved a man for torching a crack house in West Palm Beach.

    Ironically, crime has been dropping in America in recent years, but people still feel threatened in their homes and on the streets. The “Going Postal” syndrome with random acts of mass violence is occurring everyway in society, including schools and churches. Goetz and Horn will not be the last vigilantes.

Wednesday, December 5, 2007

Indian Casinos: The Dark Side

Connecticut’s Foxwoods and Mohecan Sun, the two largest casinos in the world, showcase a boom in Indian casinos. Seemingly every pueblo in New Mexico has one. They provide employment, hope, pride, revenue, housing and healthcare for tribal members, taxes to the states, and growing political power for the tribes. Considering the 3½ centuries of discrimination and depravations against America’s Native Americans, they deserve whatever success they have achieved.

Prior to the casinos, the situation on most reservations was abject poverty, alcoholism, despair, and unemployment. Many tribes were not even recognized by the federal government, which in essence meant they had no separate rights under federal law. Most reservations were intentionally located on lands seemingly lacking in resources. A classic example occurred with the creation of the Colville Reservation in Washington. It was originally established on the eastern side of the Columbia River by Executive Order. Settlers promptly protested because of the high quality land on that side of the river so it was moved, again by Executive Order, to the western side of the Columbia.

Some reservations contained natural resources, such as oil and gas, coal, timber, and grasslands for grazing. A few, such as the Aqua Calientes in Palm Springs, were blest with an advantageous geographic location. Some scratched out a meager existence with “Indian Smoke Shops.” These sold not only tobacco, but also in some cases alcoholic beverages, such as beer, and fireworks. I remember decades ago when legal fireworks were sold in Washington State as “Safe and Sane,” but a local tribe advertised “Unsafe and Insane” fireworks.

Congress legalized the status of Indian casinos and gambling with the Indian Gaming Regulatory Act of 1988. States have very limited options in authorizing, regulating, and policing Indian casinos. Congress expressly gave them a highly subordinate role in regulating Indian gaming.

The casinos have changed the fortune of many tribes. Foxwoods, while not the first Indian Casino, has been by far the most successful. It is reportedly the largest grossing casino in the world, and pays 25% of its slots revenue to the state. About 400 Indian gaming facilities now gross over $25 billion.

Yet, as is often the case with great success, a dark side exists. Indian casinos are no exception. Although opponents warned of corruption, no reason exists to believe that Indian casinos will be any more corrupt than non-Indian casinos or any other human organization. Any questions about the morality and wisdom of gambling have already been resolved in most states through state sponsored lotteries.

A major issue is not the traditional forms of corruption, but political corruption. The successful Indian casinos are pouring millions of dollars into referendums and the campaign coffers of favored politicians. McCain-Feingold and other campaign laws do not apply to Indian tribes.

One of the lesser reasons California voters recalled Governor Gray Davis was his seeming obsequiousness to tribes contributing to his campaigns. His Lieutenant Governor was similarly tainted in the recall election as he unsuccessfully sought the Governor’s Office. Roughly 20% of all the funding in the recall election came from Indian tribes. Two tribes, the Viejas Band of Kumeyaay Indians and the Pechanga Band of Mission Indians, each directly poured over $2 million into the election.

Much of last year’s corruption scandal of Jack Abramoff, the disgraced lobbyist, was over Indian Casinos. Tens of millions of dollars were collected from several tribes either to facilitate or oppose new casinos.

Another problem, exhibited by a few successful tribes today, is to purge their rolls of members they suddenly and often arbitrarily decide do not in fact qualify as members. Tribes, not the federal government, determine tribal membership. The Supreme Court has held that a tribe’s right to define its membership is viewed as “central to its existence as an independent political community.”

Every “nonmember” removed from the rolls, sometimes it would appear with an electron microscope, sharply increases the payments to the ever shrinking band of remaining members. The exiled members are legally powerless to prevent these ousters, except by appeal to tribal courts. History and human experience teaches us to expect false claims and chicanery when sudden wealth flows into an entity, but that should not justify a purging of tribal rolls of families who have been accepted as members for generations.

On a related note, most tribes possess sovereignty. Tribal entities and tribal lands cannot be sued in federal or state courts. If, for example, you have a dispute with a Nevada or New Jersey casino, you can pursue your legal remedies in state and federal court. By way of contrast, your only recourse against tribal casinos will again be in tribal court, which may not seem a viable remedy to non-tribal members. Tribes also run ski slopes and hotels, such as the Florida hotel where Anna Nicole Smith spent her final days and hours.

Even worse, only 275 of the 360 federally recognized tribes have court systems. The rest will simply create a review committee on an ad hoc basis.

In one case a casino patron was injured by someone running through a casino, knocking her over. Her claim against the casino was rejected by the tribe’s defense counsel and insurer. Imagine her reaction in showing up to her appearance before the tribal panel, finding that five Council members who oversee the casino, sat on the panel and that the presiding judge was the defense counsel who rejected her claim.

If casinos wish to market their operations to hundreds of thousands, if not millions, of non-tribal members, then they should be prepared to answer in non-tribal courts for their wrongful acts.

They have a fear, clearly justified by history, that they will not always get a fair hearing in state courts. The bias can even be by supposedly impartial judges as well as jurors. In one Montana Supreme Court opinion, the Court opined that if the Supreme Court of the United States didn’t like this decision, then they could always reverse it.

The fear of non-tribal members is that they cannot get a fair hearing in tribal judicial systems. To the extent that tribes are engaged in large commercial enterprises dependant upon revenues of non-tribal members, they must be prepared to answer legally for the legitimate claims of non-members.

Wednesday, November 28, 2007

Soda Jerks: Cradle to Grave

The Nanny Police strike again. Last September seven senior citizens, average age 76, picketed their senior center for cutting off their doughnuts, pies and breads in Putnam County, New York. County officials believed that the goodies, donated free, were unhealthy for our senior citizens. If you live to 80 with poor eating habits, God Bless You. You should be rewarded with whatever let you live so long.

But not for the government nannies! Let’s do to gramps and granny what we have been doing to their grandchildren in recent years.

Growing concerns about childhood obesity has led to drastic deprivations in school diets. 30% of schools ban junk food from their school vending machines. Bake sales are shrinking. Even celebrating birthdays with cupcakes is verboten in many schools. Too much fat, too little joy and happiness!

A backlash is beginning. Cupcakes have seemingly replaced apple pie as the American icon. Indeed, the Texas Legislature has responded with the Safe Cupcake Amendment of 2005. Don’t Mess With Texas or cupcakes

It’s bad enough that sodas are being barred from school children on the grounds that sodas are making them obese. Instead, new healthy, and often uneatable, meals are prepared for the students. As it turns out, a lot of the traditional healthy food ends up in the cafeteria’s waste bins. Anything green is inedible to youngsters.

We are also in the process of removing trans fats from food products. The ban is gaining steam. New York City and Philadelphia have banned the use of trans fats in restaurants. The California Legislature is in the process of enacting bans against trans fats and deep fryers in school cafeterias. Food processors and falling over each other to remove trans fats from their products.

Many consumers aren’t exactly sure what trans fats are, but the phrase sounds bad. Trans fats are essentially the addition of hydrogen oil in the cooking process. They serve three purposes: improve flavor, improve texture, and increase shelf life. They also add highly unhealthy levels of bad cholesterol to the diet.

To some extent the rush to ban trans fats is faddish. Saturated fats are almost as unhealthy, and are present in 10-15% of our diet compared to 1-2% for the reviled trans fats. The next move will be to go after the saturated fats, followed by an intensified drive against red meats.

Once the War Against Soda is won, then we should progress to other killer foods, such as ice cream (Say goodbye to Haagen-Dazs and Ben and Jerry), lunch meats, hot dogs, sausage, bratwurst, pork rinds, and double cheese burgers. Bagels are ok; bagels with cream cheese may not be. Forget those Starbucks’ lattes.

All we may be left with are diet foods, salads (sans fattening dressings), fruits, vegetables and yogurt in the end. Did anyone say government mandated vegans? Even vegetables would have to be organic – no chemicals of any kind. A few fish would be allowed, but none with mercury, thereby excluding tuna, swordfish, and shark.

Diet foods are not the answer. For example, studies have shown that diet sodas do not reduce weight in most persons for two reasons. First, they apparently stimulate the body’s need for additional liquids. Roughly 55% of a woman’s body weight, and 60% of a man’s, is liquids.

Second, some consumers believe that if they drink a diet soda, then they can cheat on the rest of the meal. Indeed, diet foods often result in eating more of something, so the result is the same as eating lesser amounts of fatty foods.

The place to start with dietary adjustments should be in the home – not the schools or senior centers.

The biggest problem for many teenagers is the freshman year of college. We know that for college students the four basic food groups are beer, pizza, fast food, and microwave popcorn.

Today’s growing obesity problem has many causes, including diet and a sedentary life style.

The problem is actually to a large extent a lack of exercise, much of which is the fault of school boards and legislatures, and some the parents. When I was growing up in San Francisco, we were required to take PE through the 12th grade. Now in California it is only into the 10th grade.

We engaged in a highly unusual activity then of actually walking to school, often over a mile. Now most kids are seemingly bussed or get rides from parents. Pizza was a novelty, MacDonald was just starting up, and prepared foods, such as “lunchables” were virtually non-existent. Microwaves did not exist, thereby depriving us of the joys of eating fatty, artificially buttered with the toxin diacetyl, microwave popcorn. Comedians made fun of the new food group four decades ago, known as frozen dinners.

A recent Los Angeles County public health study showed that children in low income communities have obesity rates up to nine times higher than children in affluent areas with ample recreational space. Exercise matters!

Sugared sodas receive the blame for the growing obesity problem. It’s always easier to place the blame on someone else instead of looking in the mirror.

The mounting cascade of pressure resulted in the soda industry adopting voluntary guidelines in May 2006 that would eliminate the sales of sugared sodas to schools by the 2009-2010 school year. This agreement was apparently not good enough. An amendment to the pending, and otherwise bloated, farm bill would impose limits on the calories, fats, and sugar allowed in snack foods sold in schools. It imposes nutritional standards for beverages and sports drinks in vending machines, school stores and other school venues. Only bottled water, milk, juice, or other drinks containing 25 calories or less per 8 ounces would be allowed. Sports drink sales would be limited to athletic areas in high schools.

The Los Angeles City Council, concerned about growing obesity in South Los Angeles, is considering a moratorium on new fast food restaurants in South LA for one or two years. On its face, a rational basis exists for the proposal. Countywide obesity rates rose from 14% in 1997 to 21% in 2005 with 30% in South LA. 45% of the 900 restaurants in the area are either fast food or have limited seating capacity.

On the other hand, the proposal defies economic reality. Fast food provides both the taste and low pricing attractive to the residents. The idea of placing upper scale, sit down restaurants in these areas is not economically viable at the present time. In addition, many of fast food restaurants offer healthy alternatives on their menus. They are just not as popular as the traditional greasy burgers, salty fries, cheesy pizzas and tacos, footlong grinders, and high cholesterol shakes.

All these bans also defy evolutionary biology. Humans are omnivores. Our ancestors were meat, fish, berries, nuts, vegetables and grain eaters - whatever was available, with an emphasis on meat. Our ancestors ate more red meats than we do today.

Those who daily eat junk food and then gain 100 pounds, should not be suing fast food restaurants, but look into the mirror to spot the responsible party. I’m waiting for the lawsuits against Coke and Pepsi for making victims fat.
Marie Antoinette supposedly said “Let them eat cake.” We say “Let them eat cupcakes

Tuesday, November 6, 2007

Warren Buffett is Undertaxed

Warren Buffett is undertaxed. We know this because he told us so at a million dollar Hillary Clinton fund raiser on June 26, 2007. He stated he paid only 17.7% in taxes on income of $46 million, a lower tax rate than any of his staff.

He revealed his secretary, earning $60,000, paid a 30% tax rate, and the average tax rate for his staff was 32.9%.

Several observations are immediately apparent. First, his secretary is grossly underpaid. The secretary, or executive secretary, or administrative assistant, to a multi-billionaire is certainly worth much more than $60,000.

Second, he never tells us the source of his taxable income, but it apparently is not from wages and salaries. Therefore, his income is derived from capital gains, dividends, and interest on prior investments. Dividends and capital gains are taxed at a 15% rate to encourage capital investment - the key to economic growth in America.

He should also release his tax returns for the edification of the American public.

We can safely assume that much of the tax burden on his employees is from the highly regressive social security (FICA) and Medicare taxes (FICA-HI) since the marginal tax rates of his obviously undercompensated employees are only 10% or 15%. The proper corrective action would be to lower his staff’s taxes or pay them more, but he never advocates for lower taxes for the rest of us. Unfortunately, the future prospect is that these taxes will increase as the base level for social security taxes automatically rises yearly. His Democratic friends are always happy to raise these regressive taxes, as well as the equally regressive sales, tobacco and alcohol taxes. Such compassion for the underprivileged!

Warren Buffet also opposes any lowering of inheritance taxes. The rank hypocrisy of this multi-billionaire is monumental. His estate planning will result in minimal, if any, inheritance taxes from one who professes to be undertaxed. He has almost eliminated any prospect of his estate paying inheritance taxes by donating $30 billion to the William and Melinda Gates Foundation. He has also made it clear that his children should expect nothing from him when he dies. What a loving father!

He earlier complained that the property taxes on his Laguna Beach house were also too low because of California’s Proposition 13. Maybe he should move to California and enjoy our 10.3% marginal tax rate on millionaires, including dividends and capital gains. He should immigrate to California to offset the flow out of California expatriates upset by California’s already high taxes and poor business environment.

If Warren Buffet sincerely bellies he is undertaxed, a simple solution exists. Talk is cheap. He can always put his money where his mouth is by voluntarily writing out a larger check to the IRS, thereby paying more. The solution to his being undertaxed is not to raise the taxes on the rest of us.

Wednesday, October 24, 2007


A somewhat related issue arises today. All too many of today’s “student athletes” seem to be “criminal athletes.”

One possibility is that they are behaving no differently than in the past, but their misdeeds, as with those of Hollywood celebrities, will no longer be ignored by reporters. A change in societal mores, coupled with the rise of talk radio, the internet, and blogs means few crimes of celebrities and sports figures will go unreported. The spotlight especially shines on wining programs.

A classic case from two decades ago involves Nebraska and its sensational running back, Lawrence Phillips. In an act now commonly referred to as ‘domestic abuse,” he dragged his girlfriend by her hair down a stairwell. He was suspended for a few games, but then started the Fiesta Bowl, rushing for 165 yards and scoring two rushing and one receiving touchdown. Both Ohio State’s Maurice Clarett and Phillips have enjoyed America’s prison system after their college careers ended.

Florida and Texas have witnessed an abnormally high number of football players arrested since they won their national championships in the past two years. For example, 6 Longhorn players were arrested between June and September 2007. Miami and Oklahoma acquired reputations in the 1980’s and 1990’s of running "out of control" programs. Notre Dame used to play the University of Miami annually. The 1988 game received the sobriquet “Catholics versus Convicts.” Notre Dame soon stopped scheduling Miami because of the behavior of Miami players. Colorado is recovering from player and recruiting scandals with its football team. A jury in September 2003 awarded $1 million in damages to a woman who accused three Notre Dame players and a former player of rape. Even highly respected programs, such as Penn State, have seen players arrested for alleged criminal behavior.

Whatever drives some of these players to success in a violent game may also move some of them to violent, anti social behavior in non-academic, non-athletic activities. Steroids also play a role in promoting player violence both on and off the field. Even today, all too many players start bulking up in high school.

Let us not forget my first alma mater, the University of San Francisco, which in 1982 suspended its then prominent basketball program for problems with tutors and a sexual assault by a player. The USF basketball program has not yet recovered.

Fans all too often also engage in boorish and loutish behavior. The retiring President of Ohio State recently stated in an interview that a culture of rioting existed at Ohio State when she became President in 2002: “When you win a game, you riot. When you lose a game, you riot. When spring comes, you riot. African-American Heritage Festival Weekend, you riot.”

Clearly, most Ohio State students do not participate in these riots. Nor is the problem limited to Ohio State. Michigan had problems a decade earlier when its basketball program was riding high. Kentucky’s students rioted after the upset over LSU two weeks ago. Maryland’s NCAA Basketball Championship was celebrated with similar destructiveness. University of Massachusetts students rioted after Red Sox victories in 2004 and after UMass beat Appalachian State a few years back for the National Football Championship. These are but a few examples of unruly common student behavior. Riots and demonstrations are not limited to sporting events. Anti-war, anti-military, anti-CIA, anti ROTC, anti draft protests, Civil Rights, diversity enrollment and the environment have drawn their fair share of demonstrations and riots at campuses over the decades.

A second explanation is that character is often not a factor in recruiting. Coaches whose careers depend on winning will recruit raw ability rather than character. In addition, many overlook transgressions in an effort to keep players happy. Professors have tenure. Coaches do not. Since many star athletes have been treated as royalty long before they entered college, their sense of entitlement is ever greater. Somewhere along the way, they lost their moral compass.

Let us look though at two great coaches from the past. Mike Warren was a star basketball guard at UCLA and has since achieved success in Hollywood. He left Indiana to play for Coach John Wooden. He said this about Coach Wooden in a recent LA Times article:

“I arrive and I am 18 years old, a grown man now, of course. And there are parties and something going on day and night in the UCLA campus. I’m there, enjoying it all.

Then I get a call to see Coach Wooden. I’m fine. Excited. Figure we would talk about basketball. Then I get into his office and he’s looking at me. Those beady eyes. He asks me if I know why I am here and I tell him yes, to play basketball. And he says no, I’m here to get an education and if I don’t shape up, I’m going to get neither basketball nor an education. He says my parents would certainly not appreciate the way I am conducting myself.

The next quarter I was on the Dean’s List.”

We also know today that, although he wanted no publicity at the time, Ohio State’s great, and sometimes surly and combative coach, Woody Hayes was deeply interested in his players receiving an education. So concerned was Woody that he personally tutored History and English to many of his players.

Where are these coaches today?

A third explanation is that sometimes players are victims of false accusations. The Duke Lacrosse players are a prime example of this phenomenon. The allegations initially had a degree of credibility because of past incidents with the players, but many in society, including Duke Faculty, were quick to jump on the bandwagon against the team and players.

Faculty, whose primary concern is the educational quality of the institution, are often upset by the independence of athletic programs, low admissions standards for the athletes, and their misdeeds. However, they also need to recognize the realities of academic life. If the students and alumni of many universities were polled as to which they would prefer for the school:

I) A faculty member winning a Nobel Prize;
II) A football player winning the Heisman; or
III) A national championship in basketball or football?

The Nobel Prize would probably come in a distant third. Even the Ivy League universities realize that their alumni want successful athletic programs. For example, Harvard must beat Yale on the fields of play and similarly Yale must beat Harvard.

T. Boone Pickens, a Oklahoma State alum, donated $165 million to his alma mater for athletic facilities. Phil Knight, a Oregon grad and founder of Nike, has been incredibly supportive of the Oregon athletic program, with over $100 million recently. Indeed, at one point Oregon students wanted to remove Nike clothes from the university because of overseas child labor issues. Phil simple threatened to remove his support from the University. He won; the students lost. His name is on several campus buildings, including the main library.

Schools, like Duke, Northwestern, Notre Dame, and Stanford with high admissions standards and supervision of their student athletes in big time sports programs should not incur the high number of incidents experienced by schools and coaches which recruit and then tolerate loose behavior by players. No school is immune, but some seem to have higher rates than others.

Sunday, October 21, 2007


A mediocre 1-4 Stanford football team, a 41 point underdog, on October 6, 2007 upset the Number 2 ranked University of Southern California Trojans – the latest in a season of upsets initiated with Appalachian State’s stunning 34-32 victory over Michigan.

My interest was piqued by a Los Angeles Times column on Tuesday, October 9, 2007 by the sportswriter Kurt Streeter. His focus was on the high intelligence of the Stanford players. Stanford is one of the few universities, which apparently does not cut an admissions break for athletes. Indeed, the athletic department cannot offer a student until after the athlete receives an acceptance from the admissions office.

The three measures of an institution’s commitment to its student athletes is to look at the admissions standards for athletes, the course work measured by majors, and the graduation rate for the athletes.

The USC quarterback threw four interceptions. The Stanford players intercepting the passes were two high school National Honor Society members, a high school valedictorian, and an academic all-state nominee in high school. All the members of the offensive line were on a high school honor roll. The reality is that very few high quality high school football players will be academically eligible to play for Stanford. 15 of the current players are engineering majors.

We often use the hackneyed phrase “student athletes,” but at Stanford they are “scholar athletes.”

USC has become a great academic institution in recent years with highly selective admissions standards. U.S. News & World Reports ranks it as the 27th best university in America compared to Stanford’s number 4 rating. USC has long since lost the nickname as “The University of Second Choice.” Yet USC does not adhere to its high admissions standards when it comes to football players. It recognizes that football is an integral part of USC’s heritage, just as basketball is to cross town rival UCLA.

We can do a comparison though of Stanford’s players to those of USC and Michigan, a prestigious public university with high admissions standards. A look at the media guides for the football teams at USC and Michigan highlights the high academic standards of Stanford.

USC’s media guide does not include the majors of the incoming freshmen players as well as an additional 23 of the returning students. Of the remaining students, 23 are majoring in Sociology, 6 in Pubic Policy, Management and Planning, 2 each in History and Business Administration, and one each in American Studies, Economics, International Relations, and Political Science.

Both Stanford and Michigan have two of the nation’s most prestigious business and engineering schools. As might be expected, many of Michigan’s football graduates have become doctors, lawyers, engineers, and prominent businessmen. Not necessarily though from the current team. Of the 77 player bios in this year’s media guide, 54 are in the School of Literature, Science and the Arts (LSA). 31 of these are majoring in General Studies and 14 are undeclared, which leaves nine LSA majors in American Studies, Economics, English, History, Psychology, and Sociology. Nineteen are in the School of Kinesiology, but 15 of these are undeclared. Only two team members are in the Ross School of Business and only one is engineering major. One player has no major listed.

Even with majors like these, some institutions resort to suspect efforts to maintain academic eligiblity. Thus, Minnesota (basketball), Auburn (grade changes in the Sociology Department), and Florida State (the extent of which is still unknown) have had academic scandals. The professors in charge of these academic support programs, and the tutors and TA’s administering them, realize that their major purpose is to keep players academically eligible. These schools are probably not the only ones engaging in inappropriate activities, but they were caught. Several football players at USC were recently discovered to be taking suspect off-campus courses.

A related statistic is the graduation rates of athletic programs. The NCAA reports these critical rates. They provide a guide to an institution’s attitude to “student scholars.” The overall rate for 2006 was 55% - hardly an impressive figure. Notre Dame achieved a 95% graduation rate and Stanford a comparable 94% compared to 71% for Michigan and 55% for USC. Of the last two NCAA football champions, Florida had a highly respectable 80%, double Texas’ 40%. Stanford’s players, of course, realize most of them will not be playing on Sundays so they concentrate on their academic studies.

Most schools profess to want athletes to graduate, but the reality is that at most major football and basketball programs a high graduation, but low win rate will result in the coach being fired. Even Stanford fired Harbaugh's predecessor for failures on the field.

Let us also note in fairness that cheating is not unique to athletic programs. Students learn to cheat in high school and many continue in college with cheating and plagiarism scandals in regular academic programs, including those of the military academies. Even in law schools, honor committees often have to deal with blatant cases of plagiarism. When it occurs though in prominent athletic programs, it becomes national news.

An even more unfortunate, and perhaps all too common, example comes from Ohio State. A great frosh phenom running back, Maurice Clarett, led Ohio State to a national championship while attending few classes. He had enrolled in a number of independent research courses, never returned to school, and subsequently matriculated in the Ohio Penal System.

Stanford’s coach, Jim Harbaugh, was an All-American quarterback at Michigan so Wolverine fans should be elated with the Stanford victory which has caused some to forget the Appalachian State loss. Harbaugh though in a newspaper interview last May said this about his alma mater:

“Michigan is a good school and I got a good education there, but the athletic department has ways to get borderline guys in and, when they’re in, they steer them to courses in sports communications. They’re adulated when they’re playing, but when they get out, the people who adulated them won’t hire them.”

Don’t expect Harbaugh to be the next coach at Michigan.

A third school of high reputation and a storied football past is Notre Dame, second only to Michigan in both the number of football victories and winning percentage. Notre Dame has fallen on hard times recently. A major reason is that, like Stanford, the admissions office has imposed high standards on the football recruits. Notre Dame’s great alumnus, Paul Hornung, publicly suggested that the school relax its admissions standards. For example, only 2 Proposition 48 students have ever played for Notre Dame.

We know that a few years ago a Michigan wide receiver (I could mention names, but I won’t) became an All-American. He dreamed of playing for The Fighting Irish, but they wouldn’t admit him. More recently Michigan State had an All American running back (again, no names mentioned). He grew up in the state of Michigan yearning to play for the Maize and Blue. Instead, he became a Spartan because Michigan wouldn’t admit him.

The lesson though is that brawn won't always win out on the athletic field.

Our next blog will look at the all too-often unfortunate extra-curricular activities of some players.

Tuesday, October 9, 2007

It's OK for Politicians to Lie in the Evergreen State

The Washington Supreme Court held last week that candidates for office can lie. Washington is one the states that provides remedies when candidates maliciously lie about their opponents in an election. The Court held that the statute violates the First Amendment.

Candidates lie! What a revelation!

The word “lie” is very short and powerful. It means to intentionally deceive, to utter a falsehood with the intent to deceive. To dissemble, to fib, to misrepresent, to misstae, to fabricate, to utter a falsehood and to perjure oneself simply do not convey the same strong message as “to lie.” Admittedly the word has been cheapened in political discourse in recent years. Seemingly every time we disagree with an opposing politician, or facts don’t develop the way we expected, someone lied. “Bush lied, Thousands died.” So much for the classic Nixon line: “Prior statement inoperative.”

Modern political vocabulary harkens back to George Orwell and Newspeak. Expenditures become investments and taxes are now revenue enhancements. Tax cuts are labeled subsidies by opponents. Double talk and hypocrisy are common currency.

Yet, candidates, politicians, political parties, and press agents lie in the traditional sense. They lie on their resumes, military background, participation in war protests, financial transactions, campaign contributions, education, athletic success, criminal past, addiction, drugs, alcoholism, ethnicity, fidelity, sex, religion, families, ethnicity and religion.

They lie to constituents, voters, the media, staff, campaign workers, fellow politicians, lovers, and their families. They may even lie to themselves. Representatives and Senators do one thing in Washington and say the opposite back home. Presidents stare the camera in the eye and lie to the viewers. Is it no wonder that the American public holds Congress in even less esteem than the President?

Some politicians master the art of talking out of both sides of their mouth. Indeed, some are so smooth that even though you know they’re lying, you award style points.

If caught, some politicians resort to “The Big Lie,’ pioneered by Goebbels and the Nazis. If the lie and the denial are outrageous enough, people just might believe them. The boldface lie may succeed.

Even non-lies may sound like lies. President’ Nixon’s “I am not a crook” was literally true. He was not a crook, but he was many other things.

Lying is non-partisan and non-sectarian and now non-actionable. Some lying is congenital, some opportunistic, and some out of desperation, but a lie is a lie.

Some lies may be minor, but others are devastating to the nation. LBJ accused Senator Barry Goldwater in the 1964 campaign of being a war monger interested in nuking Vietnam. (Goldwater was an unabashed hawk who did not understand the value of nuance in a Presidential election.) Only later did we learn that all along President Johnson was planning a substantial escalation in Vietnam, waiting only until after his reelection to implement the decision. Indeed, the Congressional vote to support South Vietnam, The Gulf of Tonkin resolution, was based on a false story about North Vietnamese attacks on American naval vessels in international waters.

Fake documents and redigitized photos lie.

I’ve seen lies in school board and city council elections all the way up through Presidential elections. A few judicial candidates may even lie.

On the other hand, sometimes candidates cannot lie. Twice in the 1988 Republican Primary in New Hampshire, Senator Dole tried to tape “The Pledge.” He just couldn’t do it. The Pledge is the New Hampshire promise not to raise taxes.

Instead, Vice President George H.W. Bush received the nomination, and in his acceptance speech at the Republican National Convention vowed “No new taxes.” That was a winning sound bite over Governor Michael Dukakis of Taxachusetts. Yet, once again we learnt three years later from an article in the Wall Street Journal that President Bush never intended to abide by it.

Sometimes lies catch up to politicians. President Bush’s reversal of “No New Taxes,” which was viewed by many conservatives as a covenant, led to H. Ross Perot receiving sufficient votes in the 1992 election to swing the election to Governor Bill Clinton.

Office holders lie in office.

Incumbents lie in running for reelection.

So why shouldn’t candidates lie in seeking office?

Monday, October 8, 2007

Wisconsin, Beer and Price Fixing

Wisconsin and beer - Miller, Schlitz, and Pabst. You can even get blitzed by Blatz. Madison and the University of Wisconsin work together as one of the nation’s great universities, college towns, and party schools. To be truthful, Wisconsin should not be ranked with such institutions as Arizona State, Chico State, Colorado, Colorado State, Florida, LSU, Maryland, Ole Miss, Penn State, Texas, UCSB, and ZooMass. Wisconsin is professional; all others are but mere amateurs in comparison. Beer is one of the four basic food groups and a rite of passage in Madison.

Justifiably concerned about rising alcohol driven crimes, binge drinking, and a poor image, both the University and Madison decided to act. Authorities threatened to take action against bars, but did not formally do so. However, about half the bars near the campus announced in September 2002 that they would voluntarily abandon drink specials, 2 for 1 beers and discounted liquor, on Friday and Saturday night after 8:00pm.

Assuming that these steps did not substantially reduce the amount of drinking, then the effect on the students is to raise the cost of drinking, and, not so coincidentally, the profits of the bar owners. A study sponsored by the University showed that serious alcohol-related crime continued to rise despite these actions.

The student response was to file a suit alleging price-fixing by the bars. I do not profess to predict how the Wisconsin Supreme Court will decide the antitrust issue under Wisconsin law. Both the trial court and the Wisconsin Court of Appeals upheld the agreement as a valid pursuit of social good. The Wisconsin Supreme Court heard oral arguments last week on the appeal.

Under federal antitrust law, price fixing is unlawful per se. Arguments of pursuing the public or social good will not justify price fixing. Unlawful price-fixing extends not only to an actual price, but also to the terms and conditions of sales. Thus, an agreement to limit sales or advertising discounts constitutes price-fixing. Similarly, the elimination of Happy Hours and discounted drinks is a form of price fixing.

Let us start with a premise. Business is not altruistic. Charity and good will are commendable, but business survives by making money. Even professional bodies, such as architects, engineers and lawyers, have attempted to mask price fixing by asserting a greater public good.

The NCAA has twice run afoul of the antitrust laws and price fixing, first in attempting to limit the TV appearances of college football teams ( originally referred to as the Notre Dame Rule), and secondly to limit the compensation of some assistant coaches. Both were justified as promoting competition, but neither was relevant to rules affecting play on the field.

The key is simple, once everything is said and done, are consumers paying more for the same product? Understandably, no single bar would want to unilaterally raise prices with literally scores of competing bars in a small area. Only an agreement between competitors explains them raising prices simultaneously.

The legal problem is that the bar owners did not act pursuant to a statute, ordinance, or regulatory edict. In other words, they cannot plead that state action compelled their actions. That is a wonderful defense under federal antitrust law.

If the government wishes to restrict drinking, then it can ban drinking, restrict it, limit the sales, or outlaw practices. For example, Massachusetts banned Happy Hours when I lived in the state. Certainly the Wisconsin Legislature is not going to ban the sale of alcohol. We tried that to miserable effect; it was called Prohibition. Nor would the State wish to forfeit the excise taxes from alcohol sales. Realistically, the Wisconsin legislators would find a very unfriendly reception in the Madison bars (the same bars convenient to the Wisconsin students) near the legislature if they enacted restrictions. The Madison City Council also failed to enact an ordinance that would restrict Happy Hours and the equivalent. Similarly, the state regulatory agency could impose restrictions, but didn’t.

The barkeepers were foolish enough to do it unilaterally, but collectively. The true beneficiaries are the lawyers.

On Wisconsin!

Wednesday, October 3, 2007

Spring Cleaning in Ann Arbor

Spring housecleaning should come early this year in Ann Arbor. Michigan has real problems in the Athletic Department. That the football team has shown inconsistency is upsetting enough, but is inevitable with any program. Losing to Appalachian State though is unacceptable for Michigan. When it rains, it pours, and it is pouring on Michigan’s Athletic Department.

The Athletic Department allowed an ineligible freshman to play; that is unconscionable and unacceptable at any level, much less at the statute of Michigan. After the Ed Martin scandals involving the basketball team, Michigan, of all schools, should be extra zealous in maintaining integrity in the athletic department. “The punctilio of honor the most severe” is the standard for Michigan.

Minor violations of eligibility rules do not exist. Either a player is eligible or not. We all know that the penalty for playing an ineligible player is forfeiture of all games the athlete played in, even if it was just one “minor” play. Many of us have seen great teams forfeit seasons because of “minor” eligibility violations.

The forfeiture rule is draconian. It penalizes the player, the innocent player, the team – all the teammates- the alumni, the fans, and the institution because of the incompetence of the Athletic Department which is hurting many innocent players. Eligibility goes to the essence of the game. Only eligible players can play. Period!

A double fault lies with the Athletic Director. First, any department should have a compliance officer whose job is to ensure that all the rules, no matter how arcane or obtuse, are followed. Even if the NCAA and Big Ten Compliance Manuals are as unintelligible as the IRS Code, no excuse exists for playing an ineligible player. Whatever the eligibility rules, freshman eligibility, transfer eligibility, academic eligibility, these rules are more than mere technicalities. They go to the essence of fair competition.

Second, as a matter of integrity and reputation, Michigan should, and oh how this is painful, announce that it is voluntarily forfeiting the Penn State win because of an ineligible player. Now the case will drag on, resulting in tremendous pressure on the Big Ten to do something, but with Michigan’s name being trammeled in the process. The next few weeks will be an embarrassment for Michigan, and bring back memories of Ed Martin. The question is not what the Big Ten will do, but what Michigan should do.

When too many bad things happen, when there is an accumulation of bad tidings, when evil karma strikes, feng shui is unbalanced, bad vibes appear, a negative aura materializes, just a series of poor luck, then sometimes we simply need to throw out the old and start anew. An anomaly exists in the Wolverine force field. Blame it on global warming, or whatever. But end it.

The problem rests with the Athletic Department – not the Coach. The current AD was hired to restore economic success to the Michigan Athletic Department, which must be economically self-sustaining. He has succeeded. Facilities are being renovated and upgraded. The general budget of the University of Michigan rose 1.9 over the past year. The Athletic budget rose an astounding 17.6%.

It was too good to be true. Each home game results in revenue of roughly $5 million. Eight home games this year should bring an easy $40 million into the coffers of the Athletic Department. Booking Appalachian State to open the season only cost Michigan $400,000. The cost to Michigan’s reputation and image is priceless. More attention should have been focused on quality rather then economics.

Bo, Gary, and Lloyd have done a wonderful job over four decades of avoiding the recruiting, academic and improper financial assistance scandals of other schools and programs. Names like Alabama, Auburn, Arkansas, Clemson, Colorado, Florida, Georgia (basketball), Illinois, Kentucky (football and basketball), Minnesota (basketball), Mississippi, Ohio State (football and basketball), Oklahoma, Oregon, Southern Methodist, Washington, and possibly Florida State and USC come to mind. Most painful of all to me is that my other alma mater, the University of San Francisco, shut down its basketball program for two years. The program never recovered.

It’s time to cut the losses. Spring housecleaning in the athletic department should begin this fall starting with the Athletic Director.

UC, College Textbook Prices, and the legislature

Students graduate and become professors and legislators. They remember the wrongs of their youth, especially the non-classroom annoyances. College bookstores are often the prime source of discontent. “Sell high, and buy back low” does not engender goodwill with students. Neither does under-ordering books to save money.

Bookstores, in turn, blame their high prices on the publishers. Students are outraged by the prices charged. Books for four or five courses can often add up to $500 per semester or quarter.

The California Legislature has sent two bills to Governor Schwarzenegger for his signature. The first would require publishers to provide faculty members a list of all books published in their subject area, an estimate of how long the publisher intends to keep the edition in print, and a list of the changes in new editions. This information would also be available online.

The second bill requires publishers to provide a summary of differences between the current and previous editions. Faculty could also request a printed or online list of wholesale prices and edition changes. College bookstores at public institutions would have to disclose their retail pricing policies. Similar to the federal laws against payola in the music industry, it will become illegal for anyone to order books in exchange for anything of value.

The goals of these two bills are to provide transparency in the textbook market, and hopefully restrain the high prices for college books.

No question that the publishers are charging exorbitant prices, and steadily increasing prices at a rate that exceeds inflation. A federal study two years ago showed that textbook prices over two decades climbed at twice the rate of inflation. The current editions of books, that I paid $14 four decades ago in law school, are now $100, roughly a 7% annual increase.

No question also that the publishers inhibit a market in used books by regularly issuing new editions, usually on a three year cycle, even if the revisions are de minimis and could easily be accommodated with a small supplement. No question too that law publishers boost their revenue by separating statutory (non-copyright protected) materials out of the text, and publishing them in a separate supplement essential to the student’s understanding of the materials.

Publishers can claim that specialized courses with small print runs justify a high price, and that many print runs are unprofitable.

The reality is that the prices are high because the publishers have the market power to do so. The number of publishers has shrunk through mergers, resulting in a substantial drop in competition. That is the essence of capitalism. The problem for students is that they can’t shop around, except for a few scattered used books. They do not necessarily choose the course or the section, but they must use the assigned book, which at many universities may have been written by the professor. Publishers also prefer many co-authors to boost the base market for a book.

Professors who care about the price of books have alternatives. For example, they can teach a course with duplicated materials, or through on-line postings, which necessitates students printing out the materials themselves. They may also provide a brief supplement of the essential materials not in the course book. These alternatives result in a substantial savings over published prices.

The preparation of duplicated materials may be very time consuming or unfeasible in many courses, especially for young professors at the start of their careers. The preparation of duplicated materials will often detract from the pursuit of scholarly and creative activities essential for promotion and tenure. The first sets will also probably be “primitive.” I use duplicated materials in my courses, but the students complain, often justifiably, of the inconsistent quality of the reproductions, over which I lack control.

However, the Legislature is off base. Books are but a small percent today of the costs of higher education. If the concerns are the rising costs of college, then the Legislature should be investigating itself and the Regents of the University of California for driving up the cost of tuition and fees.

By substantially cutting their support for higher education for decades the Legislature has forced the Regents of UC, the Trustees of the Cal State System, and the community colleges to raise tuition.

By way of comparison, the University of California did not even impose tuition until the end of 1967. Tuition and fees at Berkeley totaled $4,354 a decade ago and almost doubled to $8,384 this year. In 1991 tuition and fees at Berkeley amounted to only $1,920. In other words, tuition and fees at Berkeley rose 337% in 16 years. The figures for the other UC campuses are comparable.

The tuition increases for the professional schools are even more horrific. The tuition for Boalt Hall is now scheduled to increase 52% over the next three years to almost $41,000 – for California residents.

Textbook prices are high, but nothing compared to tuition.

The state budget for higher education is the easiest for the Legislature to cut, because unlike many beneficiaries of public support, the colleges can impose user fees (tuition and fees) that are in essence taxes on the students. Because these are not broad-based taxes, the public does not object. The poor and middle classes pay, often by sending their children to less prestigious institutions, going deeply into debt, or not completing college.

One proposal by California’s Treasurer is that the state should phase out its appropriations over 20 years for the University of California. Watch what happens to tuition and fees then.

Tuesday, October 2, 2007

Senator Craig's Saga

Senator Larry Craig’s legal and political morass raises several, often conflicting thoughts.

First, I feel for the Senator – no, not in that way, but that’s part of the problem. He has become the butt of every late night comedian’s jokes. Just as Senator Robert Packwood of Oregon a decade and a half ago, he has lost his effectiveness in the Senate, except for the power to cast a vote. At least, he is not being publicly reviled and harassed as Senator Packwood was after disclosure of rampant, drunken sexual harassment escapades in the past. And that was after the then popular Senator had just been reelected. The media sat on the Packwood rumors until after the 1992 election. With Senator Craig, the story has surfaced before next year’s elections.

Second, Senator Craig must resign because of a far greater public offense – gross stupidity, as reflected in his reaction to the disclosures. Any elected representative, especially one who has served in the scandal loving milieu or maelstrom of Washington for three decades, must know that pleading guilty, even to a misdemeanor, cannot remain secret.

To repeatedly waive the right to counsel is inexplicable. Retaining counsel would have made the arrest a matter of public knowledge sooner, but at least the Senator would have had an opportunity for a credible denial and the chance for a public clearing.

Further, the explanation for the weird restroom behavior, which we can analogize to being a Pontiac Wide-Track, insults human credulity.

Third, to announce a resignation, and then have second thoughts, no- third thoughts, projects an image of confusion and vacillation. The voters understand that politicians may not always be strong leaders, but will not accept public manifestation of such weaknesses. Leaders who fail in a time of crisis will usually be out of office after the next election.

Fourth, the Republican Party lost Congress in the last election, partially because of the lurid emails of Congressman Mark Foley. No evidence has surfaced that Congressman Foley successfully followed up on these solicitations, but the shame to the GOP was manifest and politically costly. No repetition will be allowed. Many of his Senate colleagues abandoned him quickly. Loyalty and friendship in politics can be very fleeting.

Fifth, Senator Craig was protected for decades by a tacit agreement that, absent public acts or dying from AIDS, the media will not out Washington politicos or Hollywood figures. They will be allowed to maintain their closet status even when accompanied by blatant hypocrisy, such as voting or publicly proclaiming against gay rights.

The powerful conservative lawyer, Roy Cohn, exemplified this reality. Only when he was clearly dying of AIDS, as with Rock Hudson, did his sexual orientation become publicly discussed in the media. Similarly, when the popular Connecticut Congressman Stuart McKinney died of AIDS in 1987, the explanation was that blood transfusions were the cause.

Rumors, of course, can surface and may have to be addressed. Tabloids occasionally have issues professing to show who’s gay and who’s straight, but these issues have all the probative value of the tabloids in general. The cumulative weight of rumors though can be potentially damaging to a candidate. For example, many Italian politicians have been tarred with the label of having Mafia connections.

Thus, Senator Hillary Rodham Clinton, in a current Advocate interview, strongly rejected the rumors floating about her, and emphatically proclaimed her heterosexuality. For what it’s worth, I had first heard the lesbian rumors while attending a conference in Kentucky during her husband’s successful 1992 campaign.

Finally, a double standard exists between the Democratic and Republican Parties. While sexual peccadilloes do not respect political parties, and indeed, are common human frailities, Republican voters have less tolerance for double sexual lives. Democrats are just as moral as Republicans, but do not campaign to the same extent on family and religious values. Divorce, as shown by President Reagan, is no longer a bar to office for Republicans. Nor are DWI’s or “youthful indiscretions” necessarily a career ender, but tawdry behavior is still unacceptable, especially in public places.

Sinning is a non-partisan activity. A classic example occurred during the Supreme Court confirmation hearings of Judge Robert Bork. The Judge had married a former nun, and the suspicion arose that they might be renting salacious videos. Opponents of the Judge then canvassed Washington, D.C. video stores for the rental records of the Borks. The inquiries turned up The Sound of Music and similar movies. The nomination was defeated, but members of Congress were concerned that their video records could similarly surface. Congress in almost record time enacted the Video Privacy Protection Act of 1988, making it a crime for video rental records to be disclosed without either the customer’s consent or a warrant.

And yet, the ACLU is right in supporting the Senator. The Minneapolis Airport sting operation was legally problematic at best, and goes against the progressive image of Minneapolis and Minnesota.

The Supreme Court in 2003 struck down state sodomy laws in a 5:4 decision. Any consummation would be protected, albeit the state has a valid interest in prosecuting public sexual acts, whether hetero or homo. But it would never have progressed that far at the airport under these circumstances.

The other acts can be characterized as flirting, invitations to sex, or perhaps even a battery. Sexual propositions are hardly actionable. Indeed, they are normal human activities, albeit sometimes highly repugnant, immoral, unprofessional, or subject to administrative or civil remedies. Perhaps an invitation to commit an illegal act might be actionable, but that’s not the case after 2003.

Nor, technically, could a battery have been committed because the undercover officer had consented to being touched.

However, whether or not Senator Craig wins or losses his appeal of his Minnesota plea is irrelevant to his political future. That was decided in Minneapolis Airport on June 11, 2007.

It's Still an Adventure to be a Wolverine

It’s time to relax. Michigan at 3-2 is now on course to win the Big Ten and a Bowl, just as in 1988 and 1998. Michigan has a ten year cycle of starting 0-2, and then finishing strong.

Lloyd Carr is still a winning coach. Outstanding freshmen are stepping up. Chad Henne, even when injured, can complete 30 yard passes, and the defense can be proud of their Notre Dame and Penn State efforts, and last half of the Northwestern game.

After all, Al Davis of the Oakland Raiders always said “Just win, Baby,” and win Michigan did against Northwestern – an ugly win, but a win nevertheless.

Therein lies the continuing problem of Michigan football today. Once again, the team has played down to the level of its competition – an increasing problem in recent years. Usually, they can win at the end, but not always as with the Appalachian State defeat.

The long standing problems persist, starting with the limited play book for the offense. Michigan’s predictable offense is a defensive coordinator’s dream. The following positions and plays are either not in the play book, or seldom used:

Fullbacks (except for blocking)

Tight Ends (except for blocking)

Play Action Passes

Screen Passes

Middle Screens

Shovel Passes

Swing Passes



Quarterback Keepers




Starting series with play action and first down passes will open up the defense, but Michigan believes in bowling over and wearing down defenses over the course of four quarters. That worked well in Bo’s days, but the large reduction in scholarships, coupled with the scores of talented players spread throughout collegiate football, has leveled the playing field.

Admittedly, Bo was also stubborn on field goals. In the 1972 Michigan-Ohio State game Bo eschewed field goals believing he could punch it in on fourth and goal several times. Michigan couldn’t; Ohio State won 12-10.

Special teams are still an adventure, with the new place kicker missing 6 field goals this year, and only making three. The highest priorities for recruiting should be a place-kicker. Even one additional victory a year, such as could have happened with Appalachian State, may make the difference between a great season and a good season.

Michigan should also have a special teams coach, the lack of which shows special teams are not a priority. Frank Beemer at Virginia Tech has proven that special teams win games. Right now special teams are a divided responsibility on the Michigan coaching staff, leading to failures on the field.

Past deficiencies in tackling techniques have reemerged, sometimes by being out of position and sometimes by lack of conditioning.

The spread offense remains an enigma to the defense, but it’s not the players’ fault. Michigan plays an offensive style of football that is rapidly being eclipsed by mobile quarterbacks outside the Big Ten. No longer is the run being used to establish the pass, but the pass and the spread are used to establish the run. If you don’t practice against these quick offenses with skilled players on a daily basis, then it’s hard to defend them in a game.

Lloyd Carr is a wonderful ambassador for the University. But he seems to lack the passion, the hunger, the drive, the intensity, the will to win that is often the difference between success and failure. All too often the players are not well prepared for a game, and that is coaching.

Lloyd deserves to leave on top at a time of his choosing. He has earned that right, but may not get it. Sadly, it’s like watching The Last Harrah or Old School. The modern game of college football has passed Michigan by, and the alumni and fans are losing patience. Merchants, restaurants, and sports bars in Ann Arbor are suffering.

For what it’s worth, Lloyd Carr is not alone in this regard. Two great coaches, Joe Paterno and Bobby Bowden, are also watching their teams slipping on the athletic field. Joe should have retired two years ago when Penn State ended up second in the nation, the only loss being a last second touchdown scored by Michigan.

Saturday, September 29, 2007

What's Happened to Our Public Law Schools

The University of California Board of Regents on Thursday, September 20 ratified a radical change in the purpose of public higher education in California. They approved such dramatic changes in tuition and fees for the professional schools that the state has essentially repudiated its 150 year old commitment to higher education for all residents. By raising tuition 52% at Boalt Hall to almost $41,000 for state residents, and a slightly lower 47% at UCLA to slightly under $40,000, the effect is to further accentuate the rise of the affluent student in today’s colleges and professional schools, and the decline of the economically disadvantaged and recent immigrants.

The nation has long supported public higher education, starting with the Northwest Ordinance of 1787, accelerated with the enactment in 1862 of the Morrill Act, creating the public land grant universities, of which the University of California is one. The GI Bill in 1944 paved the way for the children of the depression, of all races, ethnicities and income levels, to attend college. Even Harvard was initially founded in 1636 with a grant by the Massachusetts Bay Colony General Court.

The great public universities of the Midwest, followed by California, represented the rise of democracy, the prairie populism antipathy to the east, the opportunity for the waves on immigrants who settled America in the aftermath of the Civil, and opening the doors of higher education to all classes rather than a narrow, privileged class. Indeed, the University of California was founded in 1868, and in 1869 the Regents voted that the University would be open to coeds on an equal basis with males – a pioneering concept for the time. The public universities led the way in integration.

A social compact developed between the state and its citizens – a quality education would be offered to all qualified state residents at nominal tuition. Indeed, the University of California did not impose tuition until 1967, although campuses charged fees.

Public universities became the prime engine of upper mobility in America such that today 80% of all college and 60% of all graduate and professional students attend public universities and colleges.

Californians were proud in 1964 when Berkeley was rated the “best balanced distinguished university in America,” and thus the world. They are equally proud as the other UC’s, led by UCLA, have similarly risen to academic excellence.

And yet all these social gains are at risk because of a seismic shift in public finances from discretionary funding to mandates, led by Medi-Cal. California now spends more on Medi-Cal than it does on the UC’s, state colleges, and community colleges. Higher education is often the largest discretionary item in state budgets, and is most at risk when mandates expand. The national budget for Medicaid was only $1.9 billion in 1967. Medi-Cal, California’s version, is about $37.4 billion in the current year, compared to the state’s appropriation to the University of California of $3.27 billion.

Legislators have little flexibility, absent draconian budget cuts or astronomical tax increases. The cuts are passed on to university regents, presidents, chancellors, provosts, deans. At the same time, the fiscal pressures are compounded for the professional schools, especially business and law.

The Universities of Michigan and Virginia paved the way by privatizing these schools, demonstrating to the rest of the flagship public universities that these professional schools can successfully charge private tuition. In-state tuition at Michigan Law School this year is $38,760 with non-resident tuition an additional $3,000. Virginia’s resident tuition is $33,500 and non-residents pay $5,000 more Thus, universities in turn shift as much of the state budget cuts as they can onto the professional schools. For example, Virginia’s Law School receives zero funding from the state and Michigan only 2%. Both in turn pay the university large overheads fees, thereby further subsidizing the other academic programs.

The UC law schools started down this path half a decade ago. In-state tuition at Boalt was $5,000 in 1984. It rose to $20,669 by 2004, a 447% increase. It is now scheduled to double by 2010.

The two great public law schools of Michigan and Virginia are deceptive models for the UC’s because they possess two substantial assets lacked by all other public law schools: large endowments and generous alumni. Both have endowment of over $300 million. Michigan received $11 ½ million from its endowment last year. Virginia’s alumni give over $8 million to the annual fund and Michigan almost $4 million. These funds are in the dean’s discretion, and can be used to supplement faculty salaries, research and development expenses, scholarships, fellowships, grants, and student loans, and loan forgiveness for graduates entering public service.

The UC plan is to use the tuition revenues to achieve these aims, thereby relying in fact on a large pool of affluent students able to pay full tuition to subsidize a smaller number of less affluent. That is not the purpose, but it is the economic reality, as repeatedly shown by private universities. For example, Yale College has relied for decades upon roughly 60% of its students to pay full tuition to cover the discounted tuition of others.

Boalt’s endowment is estimated to be $80 million. UCLA has been very successful in fund raising, but all UC law schools have a long way to go to educate their alumni on the need to donate, both for endowments and in annual giving.

An additional caveat is that Michigan and Virginia have abandoned their historic favoritism for state residents. They are now truly national law schools. Michigan’s student body is 75% non-resident and only 25% resident. Virginia reserves only 40% of its entering class for Virginia residents.

In reducing access to state residents, Michigan and Virginia have the advantage that their states offer residents quality legal education at other public law schools in the state at substantial lower tuition. That will not be the case with the UC's.

The UC tuition increases will affect all law students in California. No longer will the private law schools be competitively restrained by the low tuition charged by their public rivals. Watch their tuitions rise substantially in lockstep with the 4, soon to be 5, UC’s.

The University of California faces the same dilemma of most public flagship universities: how to maintain its academic excellence when the legislature, driven by mandates, is no longer capable of maintaining its past support. It has chosen to privatize the professional schools. They will perforce become more elitist and national, as they essentially echo their private competitors, and lose the ethos of public universities.

Too many of our great public law schools have now become private law schools in all but name.

Monday, September 17, 2007

Whither Global warming

Hollywood and the media tell us that global warming is a scientific certainty, caused by human activity, especially the emission of greenhouse gases into the atmosphere. We must therefore substantially reduce our carbon footprint before it is too late, if it is not already.

As we ask a few, basic questions, we understand that what seems so obvious may not be the case, scientific or otherwise. These are the questions:

1) Does global warming exist?

2) If so, when did it start?

3) What are the causes:



We’re not quite sure?

All of the above?

4) What are the effects?

5) What can we do about it?

The first question is the easiest to answer. Yes, global warming exists, both globally and locally, but that doesn’t tell us much. Glaciers are melting and median temperatures rising, but that’s happened often in the past. Global warming is not a new experience for Planet Earth or even Homo Sapiens.

New York City provides an example of regional global warming. I flew one evening between Chicago and Hartford. As we were over Buffalo, the pilot pointed to an orange glow in the distance – the glow of the heat sink, better known as the New York Metropolitan area. The buildings, concrete, asphalt, lighting, power plants, auto exhaust, electric dryers, air conditioners, compressors, jack hammers, and everything else we do in such a large, urbanized area, had raised the temperature of the area by about 3 degrees. Now, I understand it’s up seven degrees.

The effects are partially theorized and partly known. For example, weather cycles, such as hurricanes and droughts, are attributed to global warming. Yet, so far all we are seeing are normal, cyclical fluctuations. Hurricanes were much more common in the early part of last century, and then became relatively quiescent in the last third of the Twentieth Century. Only now are they beginning to return to more normal levels. It’s been 70 years since a major hurricane struck the Northeast. A calamity worst than Katrina may result when the next one occurs.

Similarly, while California and parts of the Rockies are in drought conditions, history and science point to much longer, more severe droughts in the past.

Unless we know the causes, then we are simply treating the symptoms as blindly as doctors for centuries treated patients by bleeding them. If you have a cold and take an aspirin, you will recover as quickly as if you didn’t take the aspirin.

Yet, proposals are pending that will radically restructure the American lifestyle.

The reason we do not know the cause of the current global warming is that our scientific base is too small. We know, for example, that ice ages are cyclical, but not why they begin or end. Theories, Yes, but consensus, No!

Thus, when did global warming start?

Was it the end of the Huronian Ice Age 2.7-2.3 billion years ago?

Or was it after the ice age of 850-630 million years ago?

How about the Andean-Saharan Ice Age of 460-430 million years ago, or the more recent Karoo Ice Age of 350-260 million years ago?

Was it the ice age that ended about 10,000 years ago – the one that, as the glaciers retreated, left a flattened Midwest and cut off the land bridge that allowed the ancestors of America’s indigenous populations to cross the Bering Sound from Siberia to Alaska 20,000 -30,000 years ago?

Let us not forget the Little Ice Age that ran from the middle of the Thirteenth Century to around 1850.

The seven decades from about 1645 to 1715 were especially brutal with the temperatures dropping about 3 degrees Fahrenheit. This period, characterized by the munger minimum, was probably, possibly caused (once again, science is uncertain) by reduced sun spot activity on the sun.

The Fourteenth Century witnessed the end of the Vikings on Greenland, doomed by global freezing. It was devastating to Europe, destroying the existing agricultural economy. Famine and revolution followed. Napoleon’s Grand Army of 600,000 invaded Russia, and was destroyed by starvation and General Winter. Less than 10,000 returned to France.

Or did global warming begin in the spring of 1997, after the brutal winters of 1994 (“The Winter From Hell”) and 1996 on the eastern seaboard? 1996 was the winter that drove us from Massachusetts to California. (Thank you President Doti and Chapman University for starting a new Law School where it never snows.).

The United States is urged to join Europe in ratifying the Kyoto Agreement, which will result in a unilateral economic disarmament of the American economy. Kyoto will be a non-starter once the public feels the economic consequences.

Interestingly enough, in spite of their rhetoric, Europe is rapidly sliding away from implementing it. Kyoto will result in a substantial decline in the American economy while the two emerging economic powers, China and India, have not ratified Kyoto and will not implement any global warming initiatives that might thwart their rise to economic success. Just wait until the automobile is in widespread use in those countries. As it is now, China has one of the world’s worse pollution records and is only concerned because the summer Olympics will be in Beijing next year.

California, under the leadership of Governor Schwarzenegger, had adopted a global warming policy, but it will not in fact go into effect for years. The goal is a 25% reduction in global warming pollution by 2020, but so far, it’s smoke and mirrors.

A feel good response is carbon offsets. For example, rather than reduce a $500-1,000 electric bill by conservation, the consumer pays someone to plant trees in Siberia (or wherever), build wind turbines in Alaska, or windmills in Minnesota, or mine methane farms (cow manure) in Pennsylvania. Trees and forests are good, but all too often the planting of trees does not create a bio-diverse forest, but simply a tree farm, a mono-culture which consumes scarce water resources, reduces streamflow, and gobbles up fertilizer, insecticides and herbicides.

The reality is that if these alternatives are not otherwise economically feasible, only substantial tax credits will make them viable.

The notion of carbon offsets harkens back to the medieval days when the Catholic Church sold indulgences, whereby a “sinner” could pay the Church for absolution.

Another response being urged today is to enact carbon taxes, such as on power plants and gasoline consumption. We all know that taxes reduce or redirect consumption. Thus, a meaningful carbon tax should reduce to an unknown extent American consumption of carbon based fuels.

However, the real reason behind a carbon tax is to raise revenue that government can spend on other purposes. The carbon tax will neither reduce other taxes equally nor result in a substantial investment by government, as compared to the private sector, in non-carbon alternatives.

Alternative energy sources should be encouraged. Indeed, if global warming is a reality, then solar energy seems even more attractive. Wind is good, unless you are affluent and live on Martha’s Vineyard, in which case “good old Nimbyism” kicks in.

Driving a Prius seems like a green solution to reducing carbon fuels, but a recent study shows that the manufacture of a Prius actually consumes more energy that will be saved by its use.

The quickest way to substantially reduce the emission of methane gases would be to eliminate all cattle, and related species, but I don’t believe even vegans are advocating eliminating all hoofed animals around the world..

Several coastlines of America are at risk. To the extent that history provides lessons, then we will fill out and build up in selected affluent or historically significant coastal areas. Islands in Micronesia may disappear beneath the Pacific, but Manhattan will survive.

Nature, in a very perverse and often tragic way, has often lowered the global temperature through a series of catastrophic volcanic eruptions. The eruption of Tambora in Sumartra (Indonesia) in 1815 was 100 times greater than that of Mt. St. Helens in 1980. Volcanic eruptions send vast quantities of sulphur gasses, water vapor, particles and carbon dioxide into the atmosphere where it meets with water vapor and reflects the sun’s radiation back into space. 1816 became known as the “Year Without a Summer.” The famous Krakatoa eruption in 1883 was not as great, but still dimmed the temperature of the earth.

It’s also possible, again to an unknown extent, that the oceans will continue to serve as a carbon dioxide collector with the additional waters from the melting glaciers absorbing even more carbon dioxide. No one knows!

Part of the hubris of the human race is that we believe we can control the forces of nature and their consequences. To some extent we can, but we are extremely limited by our scientific knowledge, physical capabilities, engineering expertise, economic resources, and design limits. For example, even if Katrina had not leveled New Orleans, some other Category 5, or even 4, level hurricane would have. If “The Big One” strikes San Francisco or Los Angeles, the effects will be catastrophic.

Global warming is a reality, but a rush to judgment is no solution.

Friday, September 14, 2007

It's Still Great to be a Wolverine

Bo Beat Woody in 1969. I promptly became a Wolverine fan and earned two graduate degrees in the early 1970’s from Michigan. I love Michigan.

However, several propositions became clear in the early 70’s.

1) Bo was a great coach;

2) The Michigan teams were always prepared and in great physical condition;

3) In spite of 1 and 2, Michigan would lose the last game of the season, either to Ohio State or in the Rose Bowl (often to USC). We would start the year with great expectations, and then Lucy would pull the football out from Charlie Brown.

4) Funny things happened in the Rose Bowl, such as a heart attack by Bo or a phantom touchdown by Marcus Allen of USC.

5) Bo’s play calling was more imaginative than people thought. He used reverses, counters, screen passes, swing passes, draw plays, multiple running backs, and options.

6) His teams always had a mobile quarterback. Some were running quarterbacks, and others were primarily passers, but all could do both.

We realized Michigan would not win every game, but they were always competitive. We also recognized that Michigan often had a problem with the kicking game. Field goals were not Bo’s forte.

That brings us to Coach Lloyd Carr. Lloyd is a very good coach, a decent gentleman, and wonderful ambassador of good will for the University. He’s had no recruiting violations or scandals in the football program (as compared to the basketball program). He emphasizes education to the players, who mostly graduate and then lead productive lives in society. The off-field criminal activities by some players are unwelcome, but not excessive for college football programs. He handles discipline internally rather than publicly excoriating a player. Lloyd is a coach of whom we can be proud.

His first eight years of coaching were among the best in the country. He won five of six bowl games, beating Washington State, Arkansas, Alabama, Auburn, and Florida. His teams consistently beat Ohio State. His 1997 team went undefeated, winning the National Championship and Charles Woodson the Heisman – the only primarily defensive player ever to be so honored.

His teams have won 74.8% of their games – quite a feat, which slightly exceeds the cumulative Michigan win percentage of 74.3%.

Unfortunately for him, Michigan, the players, and fans, the game has passed him by.

He has lost four of the past five games to Ohio State, primarily because Ohio State has a better coach. He has lost the last four bowl games, and indeed the last four games, because the other teams were quicker and better prepared.

The lost to Appalachian State was not an upset. Those of us in the stands recognized early in the first quarter that the better team that day would probably win, and that team was Appalachian State. Michigan was out-coached, out-prepared, out-conditioned, out-played, and out-hustled. Aside from that, Michigan looked good. They had two field goals blocked in the last two minutes. Michigan only had ten players on the field twice in the fourth quarter. The offense had a number of false starts and inability to get the snap off in time. The defense was consistently out of position, trying to figure out where to be, even as the ball was snapped. The quarterback played as if he needed his eyes examined.

My friend and I were able to call almost all of Michigan’s offensive plays. Michigan’s offense has become boringly predictable in recent years - few draws, screens, counters, reverses, or option plays. Indeed, a major part of Michigan’s problems has been the limited play calling, necessitated by the two quarterbacks over the past 7 ½ years as being 6’5”, 230 lb. blocks of granite with a rifle arm and all the mobility of a dead tortoise. The last, great quarterback Michigan was Tom Brady, and the coaches did not appreciate his abilities, just as Notre Dame never knew what to make of Joe Montana. All they did was win!

The defense has been unable to defend against mobile quarterbacks and spread offenses for a decade, partially because they do not defend against them daily in practice. While other teams have gotten quicker, Michigan is slower. We recognize that even great programs experience down cycles. We understand this, and even forgave Bo once for a 6-6 season in 1984, losing the bowl game to BYU. But we cannot forgive or forget being out-coached. Today’s game has passed Lloyd Carr by.

The kicking game remains an adventure.

The fans are increasingly restive. A popular web site two years ago was It was closed last year when Michigan won its first 11 games. A new site this year is Season ticket holders were irate two years ago when Michigan imposed a seat license fee in addition to the cost of the tickets. They want value received for value paid.

Each home game is worth about $5 million in revenue to the Athletic Department and a windfall to the restaurants, hotels, and merchants in the Ann Arbor Area. They are suffering.

Lloyd Carr has earned the respect of the University community. The consensus was that he deserves to retire on his terms, presumably at the end of this season. That may no longer be the case, and he has lost the power to name his successor.

While many fans would like to see him retire, preferable sooner rather than later, especially if Michigan goes 0-3, the problem is who do you appoint as the interim coach? Certainly not the Offensive Coordinator! Clearly not the Defensive Coordinator after the past four games! Obviously not the Special Teams Coach! Then again, Michigan doesn’t have a Special Teams Coach - a small part of the problem.

The great state of Michigan is hurting. Plants are closing, and employees being laid off right and left. Kmart self-destructed, GM, Ford, and Chrysler are hemorrhaging, companies are leaving the state, and the Lions have been pathetic for decades.

Football is a sport, and thus entertainment. With or without basketball, UCLA and Duke are great universities. Notre Dame and USC do not need football to achieve their academic excellence. With or without football, Michigan is one of the world’s great universities. But it is not the same.

The Wolverine Nation is hurting.

Thursday, September 13, 2007

Erwin Chemerinsky & The O.C.

Yesterday came the announcement that UCI terminated the contract of Duke Law Professor Erwin Chemerinsky, who had recently been announced as the founding dean of the new UCI Law School.

First is a disclaimer. I teach at Chapman Law School, located about 12 miles from the UCI campus. Chapman may be severely impacted by the opening of UCI. I should therefore be excited, but I’m sad.

Similarly, as a conservative I should be pleased to see a liberal denied a deanship, but I’m sad.

As to the creation of the new law school at UCI, its presence will serve as a competitive impetus to further improve Chapman. The goal is to have a Boalt-Stanford, UCLA-USC, Chapman-UCI rivalry which benefits both institutions. Our strengths and their projected emphases will serve to complement each other to the benefit of the Bar, Orange County, and California. We need UCI to succeed so that we can succeed. This County of 3,000,000 people is big enough to support both law schools.

The report that Erwin was too liberal for the County hopefully is not true. Conservatives understand that political litmus tests in the Academy will disadvantage them in appointments, promotions, and tenure. McCarthyism ruled the 1950’s with great universities such as Berkeley, Michigan, Washington, and some of the Ivy’s firing liberal professors. Academic Freedom and tenure did not exist then. We worry about the left-wing equivalent of McCarthyism today.

Liberalism rules the Academy. Most law schools have no more than one or two registered Republicans on their faculties. Very few law schools publicly project a conservative image. Even liberals may be insufficiently liberal on some campuses, as Harvard’s President Lawrence Summers discovered.

Quality should govern – not politics. Deans and faculty should be judged by their teachings, scholarship, and service – no more, no less.

I also worry about the image of Orange County if the reports are true, or even widely believed. Once upon a time, not so long ago, Orange County was widely known to be the conservative heartland of California. Senator Berry Goldwater’s 1964 Presidential Campaign received its impetus in Orange County. Both Nixon and Reagan based their California elections on the conservative Orange County vote. The County even acquired the nickname of “The Orange Curtain.”

Just as Hollywood funnels millions in campaign contributions to Democrats, Orange County entrepreneurs return the favor with Republican candidates. Many of these self-made millionaires are on the Chapman University Board of Trustees and have no relationship with UCI, other than being proud of its presence in the County. These entrepreneurs are the product of, and believers in, the free market and competition. Chapman itself does not have a litmus test for Trustees. For example, Wylie Aitken, one of the nation’s great trial attorneys and former chair of the Orange County Democratic Party, is an honored member of the Board.

The demographics of the County have changed dramatically in the past 15 years. While still Republican, it is hardly politically monolithic as it once was. We elect Democrats to Congress, the legislature, and county government.

The younger generation knows little of the County’s political image as recent years have brought us “The O.C.,” Laguna Beach, Arrested Development, and the Real Housewives of Orange County. Even if these TV shows do not depict the lifestyles of most of us in the County, they served as a pleasant diversion and as an advertisement for the tourist industry.

And now we risk reacquiring the old image.

Wednesday, September 12, 2007

Lessons From Iraq

The two days of testimony by General Petraeus leave no doubt that, absent exigent circumstances, the United States will start a drawdown in Iraq and that the Democrats will be unable, at least until the 2008 election results, to pull the United States out of Iraq. Rather or not the war with Iraq was justified, the fact remains that we are in Iraq for the foreseeable future.

Several lessons are apparent from the Iraq conflict.

First, that roughly 2½ augmented American and one British division could conquer a nation the size of Iraq in only three weeks is one for the military record books. Nothing of that magnitude has ever been accomplished in so short a time and with such a small casualty rate. The Pentagon planned, trained and executed well.

Second, there is no substitute for “boots on the ground.” The U.S. military simply lacked the capacity to fight the war and secure the peace.

Third, the planning for the peace is just as critical as for the war.

The problem the Pentagon faced, both in Afghanistan and Iraq, is The Peace Dividend. The end of the Cold War resulted, as with every major war in our country’s history, in a large demobilization of the armed forces. It started with President George H.W. Bush, escalated with President Clinton, and was initially reaffirmed by President George W. Bush.

The military shrank in size from 2,174,214 in 1987 to 1,406,830 men and women in 1998. The Army had 18 active divisions in 1990, but only 10 in 2003. The Navy had shrunk from 580 ships to 306 in the same period while the Air Force was reduced to 91 air wings from 165. President Clinton used the Peace Dividend to balance the federal budget.

Fourth, the military did not have, and still lacks, the boots to place on the ground. It lacked the resources to surround Tora Bora and capture Bin Laden in Afghanistan. It lacked the resources to secure the arms caches and museums in the fall of Baghdad. It currently lacks the soldiers to seal the Iraqi borders with both Iran and Syria.

Therefore, if you are going to fight a war, have a military sufficient in size to successfully wage the war. Secretary of Defense Rumsfeld gambled that a small, mobile force accompanied by air power could win the war. This gamble succeeded.

He also gambled unsuccessfully that an even smaller army could win the peace.

Fifth, the American public will not support an interminable war with no visible progress. This premise is not limited to the anti-war doves of the Democratic Party. Korea, Vietnam, and now Iraq fit this pattern. Indeed, President Lincoln was facing defeat in his reelection bid in 1864, but was saved by a timely victory by General Sherman. The Democratic platform of 1864 declared the war a failure.

Sixth, the President must work with Congress in formulating the goals and means of achieving victory. After 9/11 President Bush should have worked with Congress in seeking not just a Congressional declaration about Al Qaeda and Afghanistan, but also the treatment of prisoners, Gitmo, the prosecution of terrorists, and the means of intelligence gathering. Instead of co-opting Congress, the President decided to unilaterally initiate these measures, opening the Administration up to substantial criticism and judicial attack later. Congress would not have refused the President when Ground Zero was still smoldering.

We would also have several more great quotes, such as “I voted for the bill first, and then voted against it,” (Senator Kerry), and “I never read the War Resolution before voting for it” (Senator Clinton).

Seventh, as if we needed any reminder from history, the Mideast is a cauldron of ancient feuds, religious extremism, and tribal loyalty. That a people could still view and treat the Crusades of a millennium ago as current event is not one based on rational or realistic thinking.

During this same millennium Western Europe and Christianity suffered through a thousand years of bloody warfare, pestilence, starvation, Crusades, genocide, regicide and the French and Russian Revolutions. Christians killed Christians, as well as Muslims and Jews. History gives us Peter the Great and Ivan the Terrible, Frederick the Great, Cromwell, Napoleon, Hitler, Stalin, The Renaissance, Reformation, and Restoration, the War of the Roses, The Seven Year Way, The Thirty Year War, The Hundred Year War, The French and Indian War, the War of Spanish Succession, the Franco-German War and World Wars I and II, which finally left an exhausted Europe hungry (or perhaps dying) for peace.

Eighth, peacetime generals should not fight wars. American Military History repeatedly tells us that officers who rise to high rank in a peacetime possess great diplomatic skills, but only the test of battle will show who has leadership qualities for war. The lesson is always expensive and paid for with the blood of our young soldiers. In addition, the generals from the last war are often not good at fighting a new, different kind of warfare.

Ninth, nation building is messy. The United States went through a revolution, the Articles of Confederation, the Constitution, and the horrific Civil War before becoming unified. Only the naïve can expect a country in name only, such as Iraq, to achieve the same stability overnight. Iraq was a pressure cooker with the lid brutally held down by Saddam Hussein. With him removed it blew, and how it will end up is unclear. Vengeance has not yet been fulfilled.

Tenth, the downtrodden of the world are not clamoring for democracy. Their wants are food, water, shelter, electricity, jobs, peace and security. They will support whoever can deliver these needs to them. When in doubt, they will vote by ethnicity or religion. They will gladly trade one dictator for another if it helps them secure their daily needs. Give then their needs, peace, and security, and democracy will follow.

Finally, jobs and hope are preferable to guns for the idle youth. Otherwise idle youth will resort to violence. The idle youth in America’s barrios and ghettos form gangs. In the Mideast they become suicide bombers.